Fishman was an assistant U.S. attorney in New Jersey before joining the
Department of Justice in late 1994. At Justice, Fishman served as a top
deputy to Reno, advising on criminal justice policy, including the application
of the independent counsel law. He left the Department at the end of last
year and is now in private practice.

One of the things, as you know, we are interested in is the relationship
between the independent counsels... and the Department of Justice.... Help me
understand what, inside the Department of Justice, the view is of the
independent counsel institutionally.

I think there is a recognition and an understanding within the Public Integrity
section to be sure and throughout the Criminal Division and the rest of the
Department of the reasons that we have an independent counsel statute and the
facts and circumstances that led up to its creation..., [and] as the Attorney
General said in the testimony that she gave when the independent counsel act
was re-authorized in 1994, that there is some distrust of the Department of
Justice's investigating and prosecuting certain high level public officials,
and that if the public can't have complete confidence in those kinds of cases
and how they are handled, that ultimately it undermines the faith of the
American people in the Department of Justice and the rule of law. I think
everybody understands that. At the same time, I think everybody also
understands that there are some substantial costs and burdens associated with
the independent counsel statue and it is important, as the Attorney General
said in her testimony of 1994, that there be an accommodation process to ensure
that those costs and burdens are adequately taken into account and that there
is a productive cooperative working relationship between the independent
counsel's office and the Department.

Costs and burdens?

You create a separate mechanism outside the Department of Justice - which is of
course the intent of the statute - to deal with a potential or actual conflict
of interest in the Department's handling of a particular case. To achieve that
level of independence, you create what is in effect a small mini-Justice
Department, with someone with almost [all] of the Attorney General's power to
investigate and prosecute..., but somebody, because he or she is operating
outside the regular channels of the Justice Department, who doesn't have any of
the same constraints on the ways in which they proceed and the things they can
do.

So, while intellectually, of course, the individuals in the Criminal
Division and the Public Integrity section and throughout Justice understand
that there is this need reflected by Congress for a thing called an independent
counsel, is there a way to characterize for me, sort of, the institutional gut
[feeling]? Is there any sort of territorial imperative at all going on?

I don't know if there is a territorial imperative. I think it is fair to say
that all aggressive lawyers like to handle good important cases. And I think
you will see, if you read the newspapers across the country almost any day,
that one prosecutor's office or another may be tussling, usually in a friendly
way, with another prosecutor's office over a particular case, and that sort of
thing happens all the time. The people I know in the Public Integrity
section... particularly Lee Radek, who is the Chief of that section, has a very
strong commitment to making sure that the Department of Justice is perceived as
fair and honest and above reproach. It is very important to him, and it is
very important to the Attorney [General], and the way he conducts the Public
Integrity section's business, the way he handles its responsibilities within
the Department to make sure that the Act is implemented appropriately, is I
think a real credit to the Department.

As the incoming Democratic administration, the new Democrat President and
his new Democrat Attorney General, Janet Reno, come in, they are walking into a
universe that has no independent counsel statute, and both advocated rather
vigorously... for re-authorization of the Act. Why?

I know what I know from having read the Attorney General's testimony that she
gave in 1994 and having talked to her about it shortly after I got there. She
was mindful of the historical antecedents of the act and why it had been
important in the first place to have it and I think she understood that public
cynicism and any public mistrust of the most important kind of case that the
Department of Justice can handle ultimately not only could undermine the
public's confidence in that particular case, but have repercussions that went
far beyond that for all sorts of matters being handled by the Department of
Justice, by components such as the FBI and maybe by the legal system as a
whole. I think at the time that was certainly her view....

Do you suppose when the question of re-authorization of the independent
counsel act comes up next year, that the Department of Justice's testimony will
be significantly different than it was when the last authorization question
arose...? Is there anything in the experience of the last five years that will
cause a recommended change [in the statute] from the Department of
Justice?

I am reluctant to speculate on what the Attorney General will actually decide,
but I think the kinds of things that people have been discussing in Congress
for some time and in the media and at academic conferences, are such things as
whether the number of covered persons is too large, particularly with respect
to campaign officials and other issues.

Time and spending limits?

Well, time and spending limits are hard.... I think most prosecutors don't
think that time limits are actually realistic. I think there is a real concern
that if you put a time limit on a prosecutor that you run the risk of
inappropriately tying his or her hands in a way that will allow people to delay
and drag things out to overcome that. And the other problem of course is that
if you put a time limit or a money limit on a prosecutor, you then inevitably
have the question about who is going to decide to give an extension of time or
money, and how much information do you have to give the decision maker in order
to justify your request. Whoever the decision maker is, whether it is a court,
or Congress, inevitably you will sacrifice not only some measure of
independence with the independent counsel but also I think the appropriate
closeness with which investigations are held and the information that is
available publicly.

[The act] is re-authorized and Ken Starr is appointed by the Special
Division of the court to replace [Bob] Fiske. Why did Fiske have such a broad
charter?

I wasn't there when his charter was created, so I am only speculating, but
there was an ongoing investigation that was being handled by the Department of
Justice. He was not taking over at a stage comparable to the stage at which an
independent counsel would ordinarily be appointed. As you know, ordinarily an
independent counsel gets appointed at the end of what is called a preliminary
investigation. At that point in time, no subpoenas have been issued, no
witnesses have been given immunity, no plea discussions have taken place and
the idea is that an independent counsel gets to write on essentially a clean
slate with no strings, with respect to investigative steps. There are strings
about the scope and jurisdiction that we can talk about later.

When Bob Fiske was appointed by the Attorney General, the U.S. Attorney's
office in the Eastern District of Arkansas and then the Fraud Section of the
Criminal Division had already begun investigative steps involving lots of those
things. Subpoenas had been issued. Testimony had been taken. Witnesses were
being interviewed. Plea discussions had taken place although I don't believe
at the time that any pleas had been entered. Indictments had been returned by
the U.S. Attorney's office in Arkansas, and so there were things that had
already taken place and, I am speculating a little bit, but my guess is in
order for Mr. Fiske to have the full breadth of what was going on, it was all
turned over to him and it wasn't evaluated in terms of the rigorous requirement
of the independent counsel statute which had lapsed.

I see, so when Ken Starr comes in as the statutory independent counsel, why
was his charter so broad?

Again, I wasn't there but my recollection is that, during her testimony before
the Congress on the re-authorization of the Act, the Attorney General
represented that if the Act were reauthorized and she were called upon to
appoint an independent counsel for those matters that we loosely refer to as
Whitewater, that she would ask that the jurisdiction of the statutory
independent counsel be the same as she had given to Mr. Fiske....

So [you] arrive at the Department of Justice, independent counsels are
beginning to sprout out like mushrooms after a storm and cut back to
Arkansas.... Donald Smaltz is up and running, establishing a little office
there in Fayetteville, Arkansas, and beginning to look into Don Tyson and Tyson
Foods. Was there at this point a dawning recognition inside the Department of
Justice that Don Smaltz might perhaps be a little too unrestrained in his
pursuit?

I am very reluctant to characterize Mr. Smaltz and his activities except to the
extent that they have already been the subject of discussion on the public
record by the Department. There were press reports about things he was doing.
But in terms of the Department taking any steps, nothing like that was going
on.

No, no, I don't mean any steps. I just mean, the Department of Justice
first of all has just emerged from a period where there was no such thing as an
independent counsel, and now we have a new administration and now we have
re-authorization of independent counsel [statute]... now there is a new
independent counsel called Donald Smaltz and he is in Arkansas and he is not
just investigating Espy, but this other guy, and his quotes are coming up in
news magazines and Tyson is fighting back. The Department of Justice must have
had some feeling about it, some reaction to it.

You speak of the Department I think somewhat more monolithically than is
appropriate.

Let's put it another way. The Department of Justice, the Attorney General
and various heads of divisions and subordinates who advise the Attorney
General, were fixing to be in a position, come January 1995 and almost monthly
thereafter, to make decisions about the breadth, scope and propriety of the
independent counsels. I guess what I am getting at is, and it is obvious, not
only have we been told by someone who was involved at the Department of
Justice, but it is plain that the Attorney General at least began to have a
recognition that maybe, at least in the case of Smaltz and perhaps others,
there needed to be some imposition of guidance if not control or limitation.
And I am wondering is, did that dawning realization begin to show itself in the
fall of '94 with the Tyson piece, or when exactly?

I think institutionally, the issue has been around for a lot longer than that
and doesn't relate to any particular independent counsel. If you look at the
testimony that the Attorney General gave in the late spring or early summer of
1994 on the re-authorization, you will see that she alluded in that testimony
to problems or contentious relationships that had existed between various
independent counsels and the Department of Justice in prior administrations. I
think over time there has been a recognition that independent counsels whose
jurisdiction is defined at a particular point in time, but who carry on as
prosecutors and uncover things or look for things, can approach the margins of
their jurisdiction. Sometimes rapidly, sometimes more slowly. There are a
number of cases that were reported in the mid-80's in which courts, the D.C.
circuit, I think it was, referred to the fact that an independent counsel has
wide parameters but very hazy borders about the limits of his or her
jurisdiction. It is not a new issue about the extent to which an independent
counsel can go beyond his or her core jurisdiction or original charter. And it
is very important, as the Attorney General recognized in her testimony, and as
the Department has made clear over time, that there be an ongoing consultative
dialogue between the Department and the independent counsels to make sure that
every body knows sort of what the outer limits of jurisdiction are and to make
sure the Department of Justice can play its appropriate role in defining that
jurisdiction.

We know publicly that he wrote a letter asking for expansion. We know that
a month later, public record, she said no. Was it something she even
considered?

I can tell you from having sat through hundreds of meetings with the Attorney
General, that there is nothing she signs that she doesn't consider carefully
and well. It would be a huge mistake for anybody to think that this Attorney
General takes any of these responsibilities lightly, and I don't mean to
suggest that that is what you are saying, but she is very much personally
involved in every major decision that gets made with respect to an independent
counsel and every thing she signs....

But there are different ways to consider such a question. "No, we are not
going to give him expanded jurisdiction. Now how should we phrase it and how
will it play politically?" That is one way to spend a month thinking about it.
I guess what I am really asking is, was it your memory that there was genuine
debate over the merits of expansion on that first request?

As I said, I don't remember that particular first request and I don't think I
was involved in reviewing it. But I know from having been involved in numbers
of other similar requests from Mr. Smaltz and from other independent counsels,
sometimes referrals that were initiated by the independent counsels themselves,
sometimes ones that were initiated by the Department, that they are always
debated and always discussed with this Attorney General, with head of the
Criminal Division, with the Public Integrity section, at great length and on
the merits.

[On the merits of the particular case, rather than on standing
positions certain people had about the independent counsel?]

People don't have general standing positions for and against. I think it is a
completely wrong assumption to think that there is anybody who is always for or
against....

I don't think that is right. Expansions and related matters are two different
things. I am certainly not going to characterize any individual's particular
views. But the fact is, in a situation like this, in which you would have to
apply the law to the facts on each one that comes in, whether it comes from the
independent counsel or arrives in a letter from Congress, or from a newspaper
article or through an anonymous tip, in many of these instances, there are
legitimate honest disagreements among lawyers and agents about whether the
facts warrant a particular outcome. There have been some that are quite clear.
You get to a point on some of these in which it is absolutely clear that the
standard for the statute has been met and there is no choice but to seek an
independent counsel, and everyone agrees. There are others in which it is
clear that the standard hasn't been met and everyone agrees. But I would say,
in a substantial number of them, there is an honest disagreement among lawyers
who are charged with the responsibility for evaluating these things, both
career folks and political appointees, who have an honest disagreement about
whether the facts in a particular situation warrant a referral or warrant an
expansion or warrant the appointment of an independent counsel. Ultimately, it
is the Attorney General of the United States who makes that decision and in
every situation I have seen, she steps up to the plate, talks to everyone who
wants to be heard about that particular decision, and then makes the call the
way she thinks it should be made.

What factors influence those differing views?

I think the factors that influence different views depend on the situation. In
the case of a related matter, there are a number of factors.... Are there
overlapping witnesses? Are there overlapping legal theories? Is the
allegation related to somebody who is a covered person? There are a variety of
factors that prosecutors will use in trying to make a determination about
whether two things have something to do with each other, and whether they are
so closely intertwined, or whether they actually advance the independent
counsel's investigation in a way that is contemplated by the purpose underlying
his or her appointment. That evaluation goes on every time.